Normal Farm Practices Protection Board
Commission de protection des pratiques agricoles normales
3rd Floor 1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3549 Fax: (519) 826-3259
3e étage 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3549 Téléc.: (519) 826-3259
Normal Farm Practices Protection Board
Email cover and full decision to reception@canlii.org
Platt v. Fidal Farm Motion for Costs 2011 ONNFPPB 60
DATE OF DECISION:
2011-09-23
2010-02
STATUTE:
Farming and Food Production Protection Act 1998
HEARING:
BETWEEN:
Daniel Mark Platt and Elizabeth Lore Platt -- Applicants
and
James Stuart Fisher, Helle Verbeke Fisher and Fidale Farms Ltd – Respondents
NORMAL FARM PRACTICES PROTECTION BOARD
IN THE MATTER OF THE FARMING AND FOOD PRODUCTION .PROTECTION ACT S.O. 1998, C.1.
AND IN THE MATTER OF RULE 66 OF THE NORMAL FARM PRACTICES PROTECTION BOARD RULES OF PRACTICE AND PROCEDURE WITH RESPECT TO A MOTION FOR COSTS BROUGHT BY THE R.E:SPONDENTS RELATED TO A HEARING BY THE BO.ARD
BOARD FILE NUMBER: 2010-02
Before: Glenn C. Walker, Chair Helene Blanchard, Member Dwayne Acres, Member
BETWEEN:
Daniel Mark Platt and Elizabeth Lore Platt
and
Applicants
James Stuart Fisher, Helle Verbeke Fisher and Fidale Farms Ltd.
Respondents
REPRESENTATION:
Applicants: Thomas A. Richardson and J. Patrick Maloney, Counsel Respondents: G. Edward Oldfield, Counsel
DECISION
Claim For Costs By the Respondents
The Respondents, James Stuart Fisher, Helle Verbeke Fisher and Fidale Farms Ltd., made a claim for costs in these proceedings against the Applicants. The Board requested that the parties serve and file written submissions with respect to the claim and after having an opportunity to review those submissions, the Board made a decision with respect to the claim on June 29, 2011. The Respondents claim for costs was for the sum of $23,998.17 if granted on a partial indemnity basis and the sum of $28, 130.58 if granted on a substantial indemnity basis. For the following reasons, the Applicants' claim for costs is dismissed.
LAW ON COST
In their submissions both parties made reference to this Board's Rule 66 dealing with costs and the legislative background. The Applicants in their submissions made reference to the only previous decision with respect to costs before this Board namely, the decision in Dubois v. Burkhardt (Board File No. 2008-0:3). In the Dubois decision the Board stated as follows:
"The decision in this matter is intended to establish a Board practice that costs are not awarded lightly nor are they awarded routinely. Awards of costs will be rare. Potential parties and the public should not be fearful of participating in Board proceedings. Costs should never be used as a threat or a reason to dissuad1s public participation. The Board has the statutory jurisdiction to award costs for the purpose of controlling its process. Costs before the Board are not intended to follow "the cause" nor are they intended in any way to indemnify a successful party. Each application for costs will be decided on its own merits, based on an assessment of conduct."
ISSUES
a) Was the conduct of the Applicants during the proceeding unreasonable, frivolous or vexatious or in bad faith such an award of costs should be made in favour of the Respondents?
b) If the Respondents are entitled to an award of costs against the Applicants should the award b1e made on a partial indemnity basis or on a substantial indemnity basis?
c) If an award of costs should be made in favour of the Respondents against the Applicants what should the quantum of the costs be?
ENTITLEMENT TO COSTS
In his submissions on behalf of the Respondents, Mr. Oldfield relies upon three grounds which would entitle his clients to an award of costs. They are:
The relative risks of the case;
Failure of the Applicants to establish the minimum threshold level of disturbance; and
The credibility of the Applicants.
The Relative Risks of the Case
The Applicants submit that when one analyzes a position as being frivolous, vexatious or in bad faith it is appropriate to look at the matters that were at stake for the parties. They alleged that their careers were at stake as if they lost the case and the restrictions requested by the Applicants were imposed, they would not be able to operate their business during the necessary hours for the production of hay and other cash crops or to utilize the efficient storage facilities which had been built on their property. Accordingly they would suffer a devastating financial blow.
The Respondents further allege that the Applicants engaged in what might be best described as a crusade against the Respondents.. They also allege that the Applicants chose to proceed without Counsel, although having been previously and subsequently represented, and urged the Board to conclude that they were acting in bad faith by conducting a "low cost crusade against the Respondents at no cost to themselves" (paragraph 14, Respondents' submissions).
As referred to by the Applicants in their submissions, this Board does not discourage self representation and in fact through its Citizens Guide provides edification for those who may choose to represent themselves. The Board is prepared to work with unrepresented parties and they will not be held to the same standard as trained Counsel. The Applicants represented themselves before the Board in an appropriate and respectful manner and took instruction from the Board with respect to the calling of irrelevant evidence. The Applicants did not exhibit any of the conduct set out in Rule 66(8), keeping in mind tha1t that list is not exhaustive.
The Respondents suggest that the mere fact of not obtaining representation for the hearing is unreasonable, frivolous, vexatious or in bad faith considering all of the circumstances. We disagree. Further any allegations relating to the interaction, behavior and conduct of the parties prior to the commencement of the proceedings would be irrelevant to this claim for costs.
Failure of the Applicants to Establish the Minimum Threshold Level of Disturbance
The Respondents also submit that in a case where the threshold level of disturbance does not exist it is appropriate to closely review the evidence and attitudes of the parties to ascertain whether the application is frivol(.)US, vexatious or in bad faith and whether the Applicants are simply engaged in a battle from which they expect no potential negative consequences.
In its decision in this matter the Board stated as follows:
'The Board heard absolutely no evidence of the effect the alleged disturbance was having on the Applicants. In most Section 5 cases 1there is evidence called by the Applicant to attempt to prove that the alleged disturbance in affecting the health or the sleep of the Applicants or that the Applicants are unable to use their yard, for example, because of the alleged disturbance or that the alleged disturbance has somehow affected the resale value of their lands. In this case, no evidence was called other than the general complaint about the noisei emanating from the agricultural operation site and the farm traffic on the road in front of their residence."
Despite the fact that the Applicants application was dismissed for the above noted reasons, it is not appropriate to characterize that failure to reach the minimum threshold as being frivolous, vexatious or in bad faith. The Applicants called evidence with respect to the alleged disturbances but failed to call evidence which would allow the Board to determine whether or not the disturbance met the legal threshold of civil nuisance. It may be that if they were represented, this evidence would have been called, and the Board is at liberty to consider this possibility in making a determination about entitlement to costs.
CREDIBILITY OF THE APPLICANTS
In their submissions the Applicants submit that the credibility of the Applicants should be assessed and that negative findings of credibility drawn against the Applicants would assist the Board in determining whether or not their actions were frivolous, vexatious or in bad faith. If in fact, the Board had made any determination with respect to negative credibility on the Applicants' par1 in its decision, then
possibly that might be a consideration with respect to a claim for costs. However, no such determination was made and the Board takes the position that it should not be required to make an assessment with respect to credibility of any party in connection with this claim for costs.
DECISION
After a consideration of the evidence at the hearing,. Rule 66 of the Boards Rule of Practice and the written submissions of both parties, the Board finds that the Respondents have failed to establish that the Applicants proceeded unreasonably, frivolously, vexatious or in bad faith and consequently the claim for costs is dismissed. The claim for costs in this matter is exactly the type of claim that the Board wished to discourage by its comments in Dubois. In view of the finding of the Board, it is not necessary to deal with issues 1 and 2.
DATED: September 23, 2011
Glenn C. Walker, Chair
Helene Blanchard, Member
Dwayne Acres, Mc3mber